Jones v. Beasley

• Decision Date: 31 May 1921
• Docket Number: No. 23590.,23590.
• Citation: 131 N.E. 225,191 Ind. 209
• Court: Indiana Supreme Court
• Parties: JONES et al. v. BEASLEY et al.

191 Ind. 209

131 N.E. 225

JONES et al.

v.BEASLEY et al.

No. 23590.^*

Supreme Court of Indiana.

May 31, 1921.

Appeal from Circuit Court, Grant County; J. F. Charles, Judge.

Suit by Sarah Beasley and others against Jane A. Jones and others. Judgment for plaintiffs, and defendants appeal. Reversed, with directions to sustain defendant's motion for new trial.

Wm. H. Charles and Orlo L. Cline, both of Marion, for appellants.

Gus S. Condo and John R. Browne, both of Marion, for appellees.

EWBANK, J.

The appellees brought this suit against the appellants to contest and set aside the will of Jacob Pouless, which had been admitted to probate. The complaint alleged that the appellees and two of the appellants were daughters of Jacob Pouless, and his sole heirs, and that the third appellant was the executor of his alleged will, and the husband of one of the said daughters; that Jacob Pouless died the owner of certain real and personal property; that after his death a writing purporting to be his will was admitted to probate, and thereupon said third appellant was appointed and qualified as executor; that the other appellants are the sole legatees and devisees under said pretended will, and that it purports to dispose of all his real and personal property to them; that said pretended will is invalid because: (1) Jacob Pouless was of unsound mind at the time it was attempted to be executed; (2) its alleged execution was procured by undue influence; (3) it was unduly executed; and (4) its execution was procured by fraud, in that Jacob Pouless was then 80 years old and physically and mentally infirm and susceptible to undue influence, importunities, and persuasion, and not capable of resisting the influence of others, and that the appellants and others, while he was in this condition, unduly persuaded, importuned, and influenced him to execute said pretended will. An answer of denial formed the issue which was submitted to a jury for trial. The jury found in general terms “that the alleged will in controversy is not the will of Jacob Pouless, and that the same is invalid and null and void,” and also answered 17 interrogatories, hereinafter referred to. A motion for a new trial was duly filed, which specified as a reason (among others) that the court erred in giving to the jury a certain instruction numbered 8. This motion was overruled, and appellants reserved an exception, and within the time allowed by the court filed their bill of exceptions and perfected an appeal. None of the evidence is in the record, but the instructions are set out in a bill of exceptions, which recites that they were all of the instructions given in said cause, and that each and all of them were applicable to the evidence in said cause. Burns 1914, § 691; Adams v. Vanderbeck, 148 Ind. 92, 94, 45 N. E. 645, 47 N. E. 24, 62 Am. St. Rep. 497;Waters v. Indianapolis Tel. Co., 185 Ind. 526, 532, 113 N. E. 289.

Appellees object to the consideration of the instruction complained of for a number of reasons. The first of these reasons is based upon the alleged insufficiency of the order book entry and certificate to the bill of exceptions to show that the bill of exceptions was filed after it was signed. The certificate recites that it was presented, signed, and ordered filed on June 2, 1919, and the order book entry states that the bill of exceptions, as set out, was filed on that day. This was sufficient. Toledo, etc., R. Co. v. Parks, 163 Ind. 592, 593, 72 N. E. 636.

The judge's certificate does not end with the statement that the bill of exceptions was presented to him. It recites that the appellants “ask that the same be signed, sealed, and filed as a paper in said cause, and made a part of the record thereof, which is accordingly done,” etc. This sufficiently certified that the statements in the bill of exceptions which preceded such certificate were true.

Where the evidence is not in the record the giving of an instruction will not constitute reversible error if it would not have been erroneous under a supposable state of the evidence admissible under the issues, to which it could apply. Mankin v. Pennsylvania Co., 160 Ind. 447, 454, 67 N. E. 229:Indianapolis, etc., T. Co. v. Ripley, 175 Ind 103, 108, 93 N. E. 546;Michigan C. R. Co. v. Farrell, 52 Ind. App. 603, 608, 99 N. E. 1026.

[5] The burden is upon the appellant to present for review a record which affirmatively shows that the error complained of was committed. Ewbank, Manual, §§ 122, 198, 208.

But if it is shown that an erroneous instruction...